Q: I am a member of a society that owns some land. A community centre sits on part of the land, but the rest is undeveloped. Recently, we have become aware that there may be some developers interested in commercial or residential development of this land. Is there some way that we can ensure this land is preserved for community use forever? Can we register something against title? Our fear is that our society will be infiltrated by pro-development people who will sell the property.
A: First, look at the society’s constitution and incorporation documents. Even though the procedure for forming a legal organization varies between provinces, every legal organization will have documents that establish its legal status. Such documents might include articles or memorandums of incorporation and bylaws establishing the rules under which the organization operates.
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For example, in British Columbia where you write from, if an organization is incorporated under the Societies Act it will have a constitution setting out its purpose and bylaws. A special resolution with 75 percent of the votes is required to change either the purpose or bylaws of a society. In B.C., a society can buy and sell property. Is there anything in the society’s constitution and bylaws limiting the ability to sell property? If not, would the membership be amenable to adding such a restriction?
There may be other ways to restrict development. The society could grant building restriction covenants to property owners in the neighbourhood, limiting the society or any future owner from developing the property. The society retains ownership, but agrees to limit development so that neighbouring landowners can have the benefit of facing undeveloped land. Such a restriction would be premised on the notion that undeveloped recreational lands are a benefit to neighbouring properties.
A building restriction can be registered at the land titles office. If the society or other future owner sought to develop the property, the neighbours, in whose favour the restriction is granted, would have to go to court to enforce this restriction.
A similar kind of instrument is a conservation easement. The effect of such an easement is to promise that the land will be preserved in its current state for conservation purposes. Like a restrictive covenant, the easement is made in favour of an organization whose goal is heritage or environmental protection.
Both these measures would have to be agreed to by the membership and both would mean that the society is agreeing to no future development on the land.
Finally, you should talk to your municipality about zoning. While it is beyond a municipality’s power to order the society to keep the land for recreational purposes, through its zoning bylaws a municipality can make development more difficult.
Unfortunately, like many things in our society, your questions raise complex issues for which you will need legal advice.
Don Purich is a former practising lawyer who is now involved in publishing, teaching and writing about legal issues. His columns are intended as general advice only. Individuals are encouraged to seek other opinions and/or personal counsel when dealing with legal matters.
